A Tale of Two Constitutions – Washington State vs. Washington D.C.

On a relatively sunny day in Seattle recently, a small group of attorneys, judges, law professors, and law students met to pay homage Gerry Alexander, the long time Chief Justice of the Washington State Supreme Court and to celebrate the 120th anniversary of the adoption of the Washington State Constitution.


Attorneys of all stripes attended the conference, which also focused on the role of the judiciary in Washington State.  Other high profile panelists included John McKay, a former US Attorney fired by the Bush Administration for failing to file false election fraud claims, former US Senator Slade Gorton, and Washington State Chief Justice Alexander – all heavy hitters in the Washington state legal community.  One of the key issues addressed involved the role of judicial elections and the notion of recusal of judges for the appearance of bias. 


On the issue of judicial elections, Gorton, Alexander and Sal Mungia (President of the Washington State Bar Association) all agreed that the mandate of the framers of the Washington State Constitution that the citizens of Washington State elect nearly all public officials should stay firmly in place.  Only John McKay forwarded the shaky argument that selection of judges through a “Missouri Style” selection committee with an after the fact up or down vote by the populace would work more smoothly. 


The basis for the argument founded upon the fact that sometimes the citizens of Washington did not vote in large enough percentage for judges during the election cycles.  He argued that statistics show that during elections, voters often forego voting for judges leading to the conclusion that the voters do not want to vote for judges.  Further, he implied that the citizens simply do not possess the knowledge to make the proper decision because judges do not participate in the type of free and open debate that accompanies most political election contests.   He proposed, as have others, that a special group of knowledgeable insiders should select a group of qualified judicial candidates for yet another group of even more knowledgeable people to make a final determination of who shall dispense justice for the citizens of Washington State.  Of course, he said, after this special selectors appoint the judge, then later the citizens may have the opportunity to then decide in an up or down vote as to whether or not the judges should keep their positions.  Mr. McKay was outnumbered three to one, with all other panelists deferring to the letter and spirit of the Washington State Constitution which specifically requires that almost all public officials in the state be elected by the educated citizens on a regular basis.


This notion of an educated electorate that responsibly elects its officials regularly in order to maintain democratic control of the state by its citizens was paramount in the minds of the framers of the Washington State Constitution.  Hugh Spitzer, a professor of law at the University of Washington School of Law, and an expert of the Washington State Constitution, provided some of the historical background leading to the creation and adoption of this populist, democratic document. 


In 1889, a group of populist agrarians, which included farmers, lawyers, businessmen, teachers, and other met in the open to create the document.  Newspapers around the state published daily articles about the debates and issues the delegates wrangled with (including a two day argument about whether or not a supreme deity should be acknowledged in the document).  I knew much of this, having studied the Washington State Constitution under Washington State Supreme Court Justice Chuck Johnson while attending Seattle University School of Law.  Nevertheless, Professor Spitzer’s presentation reinforced some important details that when compared to the process by which the United States Constitution lead to some troubling conclusions.


The Washington State Constitution was created by agrarian democratic populists and was debated in public for six weeks.  The final document created a framework that made it the “paramount” duty of the state to develop an educated citizenry that would regularly vote for its public officials in order to perpetuate a democratic and just society.  The US Constitution, on the other hand,  was created behind black lacquered windows by men of commerce and means who swore themselves to secrecy creating a document based on the notion that the “minority of the opulent” should be protected from the masses, who were not educated enough to make the proper decisions.


Consider the federal Bill of Rights – reluctantly added to the commercial document known as the US Constitution in order to placate the citizens of Virginia and other anti-federalists who believed that the language in the US Constitution provided no specific protections to the citizens against their government.  Compare this to  Washington State, where the framers first elaborated the rights and protections of the citizens of the state, including provisions that provide more protection for religion, free speech, private property, and protection from invasive searches and seizures by state authorities that one finds in the federal constitution and the subsequent interpretation of the federal constitution by the appointed federal judiciary.  The provision that the paramount duty of the state is to educate provides the foundation for democratic governance and the engine for future democratic debate and deliberation.  Only after establishing the rights of citizens did the framers then create the framework for governance.


While as a lawyer I have sworn to uphold both the Washington State Constitution and the United States Constitution, if I had my druthers, I would rather the United States Constitution, created in secrecy and beholden to commercial interests, be scrapped and replaced with the Washington State Constitution, whose foundation is based on an inherent trust and respect for the citizenry.


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